9911796707
TMI Blog1991 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Rules, 1944 read with Sec. 11B of the Central Excises and Salt Act, 1944. The appellant was manufacturing HDPE woven sacks and sought classification of the goods under Tariff Item 15A(2) as 'Articles of Plastics' and the Department classified the goods under Tariff Item 68 and an order to that effect was passed by the Asst. Collector on 11-3-1987 which was confirmed in appeal by an order passed by the Collector of Central Excise (Appeals) dated 12-8-1987. The appellant thereafter agitated the matter by way of Revision before the Government of India and the proceedings, by operation of law, got transferred to the Tribunal after formation of the Tribunal and the matter was ultimately disposed of by the Special Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department insisted on payment, the only course open to the appellant was to lodge a protest letter which the appellant did by their letter dated 5-5-1978 duly acknowledged by the Department and followed up the same by protest endorsement in all the R.T.12 returns. Rule 11 being the relevant rule in force at the relevant time and the same having not prescribed any particular form for protest the protest letter filed by the appellant should be treated as valid and the appellant should be held to be entitled to the refund. The Ld. counsel also referred to the ruling in the case of India Cements v. Collr. of C. Ex. [1989 (41) E.L.T. 358 (SC)]. 3. Shri Vedantham, Ld. D.R. submitted that though there was a letter of protest on 5-5-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said duty." This letter has been acknowledged by the Supdt. of C. Ex. and responded to on 6-5-1978 and the Supdt. in the said letter has directed the appellant to pay duty classifying the goods under Tariff Item 68. When the appellant has challenged the order of the Asst. Collector in appeal on the question of classification, during the pendency of the appeal in order to protect his rights, it is open to the parties to pay the duty under protest, more particularly when the Department insists on payment of the duty in terms of classification of the goods under T.1.68. In the present case, the classification question has been finally decided in favour of the appellant and, therefore, the order would date back to the original date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the ratio of the decision would be applicable to the facts and circumstances of this case. On consideration of the entire materials on record we hold that the views taken by the authorities in the impugned order are not correct. In the result the impugned order is set aside and the appeal is allowed and we hold that the appellant would be entitled to the claim for the period 5-5-1978 to 19-3-1979. Ordered accordingly. 5. [Assent per: V.P. Gulati, Member (T). - I observe that the lis in the matter started with the proceedings drawn by the Assistant Collector demanding duty from the appellants in respect of the goods in question under Tariff Item 68 and by the order dated 11-3-1977 the Learned Asst. Collector confirmed the demand for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Department have been earlier taking the filing of the protest letter as an adequate requirement for payment of duty under protest. There was no procedure as such prescribing for payment of duty under protest. It was pointed out to the Ld. D.R. for the Department that in the absence of any specific instructions in the law or in the Rules in regard to payment of duty under protest, whether once the matter stood concluded by virtue of an order of the Appellate Collector or an adjudication order whether the duty could be continued to be paid under protest, he pleaded that there is no case law to cite nor he had any plea to make in this regard. The Ld. Advocate for the appellants, however, pleaded that the duty could be continued to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cements Ltd. v. Collector of C. Ex. -1989 (41) E.L.T. SC (358) - would fairly cover the point at issue. Once it is accepted that the appellants have filed a valid protest letter and their intention to payment of duty under protest is manifest in that letter it has to be taken that the payments made thereafter are all under protest. In the present case there is no dispute that payment of duty was made under protest and the wording of the protest letter were such that these lead to the inference that the future payments were intended to be made under protest. At the relevant time there was no procedure as such like under Rule 233B and no set procedure was prescribed for making payment of duty under protest and the Ld. D.R. also does not have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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